The Constitution - The war power in practice

The early practice and understanding of the government on the issue of
warmaking closely conformed to the constitutional framework. There was,
throughout the nineteenth century, no instance of a presidential assertion
of a unilateral warmaking power. But there were disputes in the margins.

In 1793 war broke out between Great Britain and France. President George
Washington declared that the Treaty of Alliance of 1778 did not obligate
the United States to defend French territory in America, and he issued a
proclamation of neutrality. Whether this power belonged to the president
or Congress set off a remarkable debate between Hamilton and Madison. In a
series of articles signed "Pacificus," Hamilton defended the
substance of the policy as well as the president's unilateral
authority to promulgate it. Hamilton acknowledged that "the
legislature have the right to make war on the one hand," but it
remained "the duty of the Executive to preserve peace till war is
declared." In the fulfillment of that duty, Hamilton argued, the
president "must necessarily possess a right of judging what is the
nature of the obligations which the treaties of the country impose on the
government." By this time, France was involved in several wars, and
Hamilton's concerns about the force and nature of the treaties was
evident: Did they obligate the United States to assist the French in their
foreign adventures? He properly denied the existence of any such ironclad
obligation, but his view that the president possessed discretionary
authority, as part of his "duty" to preserve peace
"till war is declared," triggered a response from Madison,
who wrote under the pseudonym of "Helvidius" and asserted
that if Washington's proclamation were valid, it meant that the
president had usurped congressional power to decide between a state of
peace or a state of war. Despite this difference, both agreed that the
power to initiate war is vested in Congress. Madison wrote that the
"executive has no right, in any case, to decide the question,
whether there is or is not cause for declaring war; that the right of
convening and informing Congress, whenever such a question seems to call
for a decision, is all the right which the Constitution has deemed
requisite or proper." It is to be emphasized that throughout their
lives both Hamilton and Madison maintained the doctrine that it is for
Congress alone to initiate hostilities. That agreement reflected the
understanding of the war clause throughout the nineteenth century. In
fact, presidents—Washington, Adams, and Jefferson among
them—were particularly careful to avoid military actions that might
encroach upon the congressional warpower.

In 1798 France repeatedly raided and seized American vessels. When asked
whether a new law that increased the size of the navy authorized the
president to initiate hostilities, Hamilton stated that he had not seen
the law and that, if it did not grant the president any new authority but
left him "at the foot of the Constitution," then the
president had only the power to "employ the ships as convoys, with
authority to
repel
force by
force
(but not to capture) and to repress hostilities within our waters,
including a marine league from our coasts. Anything beyond this must fall
under the idea of
reprisals,
and requires the sanctions of that department which is to declare
or make war.
"

Contrary to the claim that President John Adams engaged in an exercise of
unilateral warmaking in the Quasi-War with France (1798–1800), the
facts demonstrate that the war was clearly authorized by Congress, which
debated the prospect of war and passed some twenty statutes permitting it
to be waged. Moreover, Adams took absolutely no independent action. In
Bas
v.
Tingy
(1800), the Supreme Court held that the body of statutes enacted by
Congress had authorized imperfect, or limited, war. In
Talbot
v.
Seeman
(1801), a case that arose from issues in the Quasi-War, Chief Justice
John Marshall wrote for the Court, "The whole powers of war being,
by the Constitution of the United States, vested in Congress, the acts of
that body can alone be resorted to as our guides in this inquiry."
In
Little
v.
Barreme
(1804), Marshall emphasized the control that Congress can wield over the
president as commander in chief. One of the statutes passed by Congress
during the Quasi-War with France authorized the president to seize vessels
sailing to French ports. President Adams issued an order directing
American ships to capture vessels sailing to or from French ports, but in
the opinion for the Court, Marshall held that Adams's order had
exceeded his authority since congressional policy set forth in the statute
was superior to presidential orders inconsistent with the statute.
Subsequent judicial holdings have reiterated the fact that the commander
in chief may be controlled by statute.

As president, Thomas Jefferson acknowledged that his powers of war were
limited to defensive actions. In his first annual message to Congress in
1801 he reported the arrogant demands made by the pasha of Tripoli. Unless
the United States paid tribute, the pasha threatened to seize American
ships and citizens. Jefferson responded by sending a small squadron to the
Mediterranean to protect against the threatened attack. He then asked
Congress for further guidance, stating he was "unauthorized by the
Constitution, without the sanction of Congress, to go beyond the line of
defense." It was left to Congress to authorize "measures of
offense also." Jefferson's understanding of the war clause
underwent no revision. In 1805 he informed Congress of the dispute with
Spain over the boundaries of Louisiana and Florida. Jefferson warned that
Spain evidenced an "intention to advance on our possessions until
they shall be repressed by an opposing force. Considering that Congress
alone is constitutionally invested with the power of changing our
condition from peace to war, I have thought it my duty to await their
authority for using force."

Other early presidents, including Washington, Madison, James Monroe, and
Andrew Jackson, also refused to exercise offensive military powers without
authorization from Congress, which they understood to be the sole
repository of the power to initiate war. There was no departure from this
understanding of the war clause throughout the nineteenth century. In 1846
President James K. Polk ordered an army into a disputed border area
between Texas and Mexico. One of its patrols was attacked by Mexican
forces, which were defeated by the U.S. soldiers. In a message to
Congress, Polk offered the rationale that Mexico had invaded the United
States, which prompted Congress to declare war. If Polk's rationale
was correct, then his action could not be challenged on constitutional
grounds, for it was well established that the president had the authority
to repel sudden attacks. If, however, he was disingenuous—if he had
in fact initiated military hostilities—then he had clearly usurped
the warmaking power of Congress. It is worth noticing that he made no
claim to constitutional power to make war.

Although Congress declared war, the House of Representatives censured Polk
for his actions because the war had been "unnecessarily and
unconstitutionally begun by the President of the United States." It
seemed evident that Polk had dispatched troops into the disputed area for
the purpose of precipitating war by provoking a Mexican attack on American
soldiers. His manipulative efforts were effective. Representative Abraham
Lincoln voted with the majority against Polk. As president, Lincoln
maintained that only Congress could authorize the initiation of
hostilities. None of his actions in the Civil War, including the
suspension of habeas corpus, the appropriation of funds from the U.S.
treasury, or his decision to call forth regiments from state militias,
each of which was eventually retroactively authorized by Congress,
constituted a precedent for presidential initiation of war. Moreover, in
the Prize Cases (1863), the Supreme Court upheld Lincoln's blockade
against the rebellious Confederacy as a constitutional response to a
sudden invasion that began with the attack on Fort Sumter. The Court
stated that the president, as commander in chief, "has no power to
initiate or declare war either against a foreign nation or a domestic
state." Nevertheless, in the event of invasion by a foreign nation
or a state, the president was not only authorized "but bound to
resist force by force. He does not initiate the war, but is bound to
accept the challenge without waiting for any special legislative
authority." According to the Court, the president had to meet the
crisis in the shape it presented itself "without waiting for
Congress to baptize it with a name; and no name given to it by him or them
could change the fact."